Articles Posted inNarcotics and Controlled Substance Offenses

A huge percentage of the criminal cases in federal court involve charges relating to the trafficking of drugs, narcotics, and controlled substances. Convictions for these crimes carry serious penalties and sometimes involve mandatory minimum prison sentences. Usually, a person accused in federal court of possessing or trafficking controlled substances is charged with violating 21 USC 841, which makes it a crime to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Section 841(b) sets forth the potential penalties for this offense, and it depends primarily upon the quantity of controlled substance possessed/distributed in the aggregate. What matters for sentencing purposes is not the number of transactions or the frequency of the activity, but the total volume of drugs possessed or distributed over time. If the quantities involved surpass a certain threshold (depending on the drug), as set forth in Section 841(b), then there can be serious mandatory minimum prison sentences for the offenders. Those mandatory minimum sentences notwithstanding, the potential penalties for these offenses are governed by the complex system set forth in the federal sentencing guidelines. For more on the federal sentencing guidelines, click here.

Federal cases involving narcotics charges typically are the result of long-term investigations by the FBI, the DEA, Homeland Security, or a joint task force involving local police like the NYPD. As such, there are oftentimes wiretaps, surveillance tapes, confidential informants, and search warrants. An effective defense requires an attorney who can review the evidence and the law enforcement processes to determine whether any constitutional rights were violated.

Many unfortunate individuals never actually possessed or distributed narcotics but nonetheless find themselves charged in federal court on account of the conspiracy laws encapsulated in 21 USC 846. That statute explains: “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Basically, this means that a person who plays any knowing role whatsoever in another person’s illegal business is criminally liable for the entirety of that conduct. For example, a person who introduces two people for the purpose of a drug transaction can be expected to be charged as an equal to whatever drug transaction ultimately occurred. A person who acts as a lookout during a drug transaction could be treated as equally culpable to the seller of the narcotics. A person who simply rents an apartment to someone whom he knows is dealing drugs from the apartment could be guilty of “conspiring” to assist the dealer. These are just a few examples of people who could be charged in ways that seem unfair in light of their relatively modest role in the crime. We have however defended many girlfriends of drug dealers and casual acquaintances of true criminals who have found themselves knee-deep in serious federal cases after having had only fleeting or tangential involvement in the cases. But this is the reality of federal conspiracy law.

American demand for illegal drugs, combined with harsh federal and state laws prohibiting their sale and possession, has created a black market that can be extraordinarily lucrative for illegal drug traffickers. Enticed by the potential to make significant amounts of money very quickly, many foreign citizens make the mistake of attempting to import controlled substances into the United States through New York City’s international airports (JFK and Newark, and to a lesser extent, LaGuardia). Those individuals caught in the act of importing narcotics typically face federal criminal charges like 21 U.S.C. § 952 (importing controlled substances) or 21 U.S.C. § 841 (possessing controlled substances with intent to distribute). Indeed, one study concluded that approximately 75% of those individuals sentenced for federal drug convictions in 2014 were illegal immigrants or foreign citizens.

Individuals without criminal records arrested for misdemeanors in New York City are routinely charged by way of a Desk Appearance Ticket. Though individuals issued Desk Appearance Ticket do not spend twenty-four hours in prison awaiting arraignment like other defendants, their cases are no less serious than those misdemeanor cases pursued the “traditional” way (in which defendants do not get released from custody until they are arraigned before a judge the day after their arrests). One of the advantages for defendants issued Desk Appearance Tickets (as opposed to the “traditional way”) is that they have an opportunity to seek counsel of their choosing for their arraignments. As a result, the attorney-authors of this blog are routinely asked: “Should I hire an attorney for my Desk Appearance Ticket?” Our typical answer: only if you care about your future, your career, or your family.

Public defenders are available for indigent defendants at arraignments on Desk Appearance Tickets. However, if you are not indigent, then you do not qualify for a public defender, meaning that you will have to return with a privately-retained lawyer anyway. Even if you do qualify, technically, for a public defender, you should consider various other reasons for hiring a private attorney. First and foremost, you will be unable to speak to a public defender in advance of your court date, whereas a private defense attorney can meet with you and prepare you and answer your questions in advance of your court date. Also, defendants with private attorneys are usually seen by the judge first and can typically leave before 10:30 am; those people relying on public defenders may find themselves waiting in line all day to talk to an attorney, and waiting to see a judge well into the afternoon session. If your case lasts beyond the arraignment, you may find it extremely difficult to get ahold of a public defender, as they are typically responsible for hundreds of criminal cases at a given moment and are often unable to respond to voicemails; in contrast, a private lawyer presumably has more time to answer your phone calls and questions and meet with you in the office. The private attorneys at our office, unlike public defenders, will continue to work on your case after its done to ensure that where, if applicable, the records of your arrest have been properly sealed and the matter cleared from the public domain. Finally, the attorneys at our office, unlike public defenders, can sometimes in certain types of cases assist out-of-state residents, students, or foreign citizens by appearing for them in lieu of personal appearances.

The traditional business model of drug trafficking, though potentially lucrative, is fraught with peril and obstacles for its participants at all levels. Thanks to fantastic television programs like The Wire and Breaking Bad, many Americans already have a basic understanding of this business model: Transactions are conducted using cash, and regulatory safeguards at banks and other institutions make it difficult for dealers to use their income to make large purchases (thereby necessitating the risky business of money laundering). Transactions are also generally made face-to-face and hand-to-hand, meaning that the dealers and buyers can be fairly easily identified or apprehended by law enforcement.

These sorts of traditional drug dealing operations use levels and levels of intermediaries to protect the chiefs from being directly implicated, but law enforcement officers have routinely been able to force low- and medium-level dealers to “snitch” on their suppliers. Moreover, this business model’s need for a human being to personally deliver contraband makes the buyers and sellers potentially subject to violent acts by thieves or competitors.

Operating as a major trafficker – NY’s “Kingpin” statute (Penal Law Section 220.77)

A few years ago, the New York Assembly enacted into law a tough new statute designed to increase the penalties for major narcotics traffickers or managers of drug trafficking organizations. Penal Law 220.77, oftentimes referred to as New York’s “kingpin statute,” makes it a Class A-1 felony offense to

act as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or

The definitions provided in Penal Law 220.62 make this charge fairly all-encompassing of any activity related to the operation of a drug laboratory. Indeed, it is not only the “manager” of the operation that can be held responsible; basically anyone and everyone that possesses or supplies materials or acts in furtherance of the operation of a laboratory can arrested and charged with the crime of Unlawful Clandestine Drug Operation in the Second Degree (Penal Law 220.63). This charge is a Class C felony. The First Degree charge (Penal Law 220.64, Class B felony) arises where there are aggravating factors, such as repeat offending, health/safety/environmental risks, the participation of a juvenile, or proximity to a school. Also, the utilization of booby traps elevates a Second-Degree charge to the First Degree.

Convictions for these charges carry potentially very significant prison sentences, so a defense must be thorough and intelligent. Typically these cases involve search warrants or wiretaps that can at least be challenged with pre-trial motions. Also, these charges often involve multiple co-defendants or conspiracy allegations, meaning that certain defendants can claim to have been wrongfully included amongst the operators of the laboratory.

Recently we have noticed an uptick in the number of arrests made by NYPD following investigations of advertisements on the popular website Craigslist (and to a lesser extent: the website Backpage). Though these websites can facilitate an almost limitless variety of crimes, the ones most commonly associated with these sites relate to prostitution-related services and sales of controlled substances/narcotics.

In New York, a valid search warrant signed by a judge can give law enforcement officers the right to search your home or place of business (among other places) for evidence of criminal conduct. Sometimes search warrants are obtained after long criminal investigations, and sometimes they are applied for quickly in emergency cases in which law enforcement fears that evidence will be destroyed. A judge can sign a search warrant where he believes, based upon sworn affirmations made to him by law enforcement and/or civilian informants, that there is probable cause to believe that the targeted location contains evidence of criminality.

Most commonly, search warrants obtained by officers from the NYPD are sought for firearms or narcotics (though the list of possible reasons for a search warrant is endless). With respect to narcotics-related search warrants, police officers will typically not apply for a warrant until they can affirm to a judge that some police officer or police informant has either seen or purchased narcotics inside the location, and done so recently. (When information about possible contraband in a location is not recent, it is considered “stale” and insufficient to justify a search warrant.)

New York City is home to a plethora of fantastic and popular nightclubs. LAVO, 1OAK, Webster Hall, Cielo, the Sullivan Room, subMercer, Pacha, RdV, Bossa Nova Civic Club, Tenjune, the Village Underground, Bembe, Club Macanudo, the Woods, bOb Bar, and the 40/40 Club are just a few of the clubs that New Yorkers and people from around the world visit to dance and have a great time in the city. Undercover narcotics officers have prowled nightclubs and attempted to buy drugs from dealers operating inside the clubs for a long time. However, as nightclubs in New York come under more pressure from law enforcement authorities to ensure that their establishments are drug-free, more and more people are being arrested as a result of searches by private security guards and bouncers patrolling the nightclubs. For example, one popular dance club in Manhattan, Webster Hall, has instituted a policy of routinely frisking people seeking admittance at the front door to ensure that they are not attempting to bring any drugs inside. We are aware of one recent incident in which a female bouncer at the entrance to Webster Hall reached into the bra of a woman trying to enter the club, and in so doing, discovered MDMA (ecstasy) inside her bra. This woman was then referred to the police at the 9th Precinct, who arrested her and gave her a Desk Appearance Ticket for a violation of Penal Law Section 220.03 (a Class A misdemeanor punishable by up to one year in prison).

Notably, the security guards at private clubs are not normally required to adhere to the Fourth Amendment rules about unlawful searches and seizures. Obviously, the Fourth Amendment instructs that police officers are not allowed to frisk someone without sufficient cause to do so, and any evidence obtained by an unlawful police seizure is inadmissible in court per the doctrine known as "fruit of the poisonous tree". Thus, because private security guards at clubs are not generally constrained by the Fourth Amendment, a prosecutor can admit into evidence drugs that were obtained from a search by a private security guard that would have been inadmissible if performed by a police officer.

However, these club-search cases are very defensible in a number of ways. First, there can be serious chain of custody issues in these cases; a skilled defense attorney may be able to demonstrate that the private security guards failed to properly secure or keep track of the drugs once seized, or that they were intermingled with drugs seized from some other patron. In those cases, the prosecution may be unable to reliably attribute certain drugs to certain individuals, as required at a trial. Moreover, these private security guards often have not received nearly the same degree of training as police officers, and they also may not be as accustomed to being as diligent with respect to their paperwork. Accordingly, the credibility and reliability of the testimony of these bouncers and security guards may be very contestable at trial.